Digital Commons Network^™

Whither Rationality?, Shi-Ling Hsu

Michigan Law Review

A Review of Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health. By Michael A. Livermore and Richard L. Revesz.

Responding To Abolition Anxieties: A Roadmap For Legal Analysis, Jamelia Morgan

Michigan Law Review

A Review of We Do This ’Til We Free Us. By Mariame Kaba.

Beating A Dead Corpse, Josh Chafetz

Michigan Law Review

A Review of Sovereignty, RIP. By Don Herzog.

The Progressive Love Affair With The Carceral State, Kate Levine

Michigan Law Review

A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.

Reconstructing Rural Discourse, Bailey Tulloch

Michigan Law Review

A Review of Where the Crawdads Sing. By Delia Owens.

“Hey Stephen”, Leah M. Litman

Michigan Law Review

A Review of The Authority of the Court and the Peril of Politics. By Stephen Breyer.

Ability Apartheid And Paid Leave, Ryan H. Nelson, Michael Ashley Stein

Michigan Law Review

A Review of Ableism at Work: Disablement and Hierarchies of Impairment. By Paul David Harpur.

Charting The Reform Path, Sanjukta Paul

Michigan Law Review

A Review of Inequality and the Labor Market: The Case for Greater Competition. Edited by Sharon Block and Benjamin H. Harris.

The Politics Of Proportionality, Nelson Tebbe, Micah Schwartzman

Michigan Law Review

A Review of How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart. By Jamal Greene.

Administrative Sabotage, David L. Noll

Michigan Law Review

Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks sabotage statutory programs?

This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than more-studied …

Searching For Truth In The First Amendment's True Threat Doctrine, Renee Griffin

Michigan Law Review

Threats of violence, even when not actually carried out, can inflict real damage. As such, state and federal laws criminalize threats in a wide range of circumstances. But threats are also speech, and free speech is broadly protected by the First Amendment. The criminalization of threats is nonetheless possible because of Supreme Court precedents denying First Amendment protection to “true threats.” Yet a crucial question remains unanswered: What counts as a true threat?

This Note examines courts’ attempts to answer this question and identifies the many ambiguities that have resulted from those attempts. In particular, this piece highlights three frontiers …

The Impact Of Amex And Its Progeny On Technology Platforms, Kacyn H. Fujii

Michigan Law Review

Big Tech today faces unprecedented levels of antitrust scrutiny. Yet antitrust enforcement against Big Tech still faces a major obstacle: the Supreme Court’s 2018 decision in Ohio v. American Express. Popularly called Amex, the case imposed a higher initial burden on antitrust plaintiffs in cases involving two-sided markets. Two-sided markets connect two distinct, noncompeting groups of customers on a shared platform. These platforms have indirect network effects, meaning that one group of customers benefits when more of the second group of customers joins the platform. Two-sided markets are ubiquitous in the technology sector, encompassing social media, search engines, …

Disparate Discrimination, Leah M. Litman

Michigan Law Review

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination.

The two tracks for …

The Imaginary Immigration Clause, Nikolas Bowie, Norah Rast

Michigan Law Review

The political convulsions of the past decade have fueled acute interest in constitutional For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, …

Vacatur Pending En Banc Review, Ruby Emberling

Michigan Law Review

When a case becomes moot on appeal, as when the parties settle, two primary Supreme Court cases guide the appellate court’s decision about whether to vacate the lower-court opinion. The Court has said that vacatur, an equitable remedy, promotes fairness to parties who were not responsible for the mootness because it erases adverse legal outcomes the litigants were prevented from appealing. Beyond this, vacatur is inadvisable since it eliminates precedential decisions and harms the judiciary’s efficiency and legitimacy. Yet this doctrinal order has not been uniformly brought to bear on the highly similar question of whether to vacate when a …

Young And Dangerous: The Role Of Youth In Risk Assessment Instruments, Ingrid Yin

Michigan Law Review

States are increasingly adopting risk assessment instruments (RAIs) to help judges determine the appropriate type and length of punishment for an offender. Although this sentencing practice has been met with a wide variety of scholarly criticism, there has been virtually no discussion of how RAIs treat youth as a strong factor contributing to a high risk score. This silence is puzzling. Not only is youth undoubtedly the most powerful risk factor in most RAIs, but youth also holds a special place in the criminal justice system as a “mitigating factor of great weight.” This Comment presents the first in-depth critique …

Social Norms In Fourth Amendment Law, Matthew Tokson, Ari Ezra Waldman

Michigan Law Review

Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.

Courts assessing social norms generally adopt what we call the closure principle, or the idea that …

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William Michael Treanor

Michigan Law Review

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

Fee Simple Failures: Rural Landscapes And Race, Jessica A. Shoemaker

Michigan Law Review

Property law’s roots are rural. America pursued an early agrarian vision that understood real property rights as instrumental to achieving a country of free, engaged citizens who cared for their communities and stewarded their physical place in it. But we have drifted far from this ideal. Today, American agriculture is industrialized, and rural communities are in decline. The fee simple ownership form has failed every agrarian objective but one: the maintenance of white landownership. For it was also embedded in the original American experiment that land ownership would be racialized for the benefit of its white citizens, through acts of …

Remediating Racism For Rent: A Landlord’S Obligation Under The Fha, Mollie Krent

Michigan Law Review

The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I …

Ranked-Choice Voting As Reprieve From The Court-Ordered Map, Benjamin P. Lempert

Michigan Law Review

Thus far, legal debates about the rise of ranked-choice voting have centered on whether legislatures can lawfully adopt the practice. This Note turns attention to the courts and the question of remedies. It proposes that courts impose ranked-choice voting as a redistricting remedy. Ranked-choice voting allows courts to cure redistricting violations without also requiring that they draw copious numbers of districts, a process the Supreme Court has described as a “political thicket.” By keeping courts away from the fact-specific, often arbitrary judgments involved in redistricting, ranked-choice voting makes for the redistricting remedy that best protects the integrity of the judicial …

Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.

Michigan Law Review

Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …

The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries

Michigan Law Review

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over …

A Different Type Of Property: White Women And The Human Property They Kept, Michele Goodwin

Michigan Law Review

A Review of Incidents in the Life of a Slave Girl. by Harriet A. Jacobs, and They Were Her Property: White Women as Slave Owners in the American South. by Stephanie E. Jones-Rogers.

The Limits Of Deliberation About The Public's Values, Mark Seidenfeld

Michigan Law Review

A Review of The Public's Law: Origins and Architecture of Progressive Democracy by Blake Emerson.

Pregnancy And The Carceral State, Khiara M. Bridges

Michigan Law Review

A Review of Policing the Womb: Invisible Women and the Criminalization of Motherhood. by Michele Goodwin.

The Market Cannot Be Your Mother, Meghan Boone

Michigan Law Review

A Review of The Free-Market Family: How the Market Crushed the American Dream (and How It Can Be Restored). by Maxine Eichner.

Two Visions Of Contract, Hanoch Dagan

Michigan Law Review

A Review of Justice in Transactions: A Theory of Contract Law. by Peter Benson.

Tort Law And Civil Recourse, Mark A. Geistfeld

Michigan Law Review

A Review of Recognizing Wrongs. by John C.P. Goldberg and Benjamin C. Zipursky.